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Volume 51, No. 24

B.C. Reg. 394/2008

The British Columbia Gazette,

Part II

December 16, 2008

B.C. Reg. 394/2008 , deposited December 9, 2008, pursuant to the GREENHOUSE GAS REDUCTION (RENEWABLE AND LOW CARBON FUEL REQUIREMENTS) ACT [Sections 25 and 30]. Order in Council 907/2008, approved and ordered December 8, 2008.

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that, effective January 1, 2010,

(

a) sections 1 to 5, 9, 11 (1), (2), (5) and (6), 12 to 14, 15 (1) and (3) to (6), 16 to 25 and 27 to 29 of the Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act S.B.C. 2008, c. 16, are brought into force, and

(

b) the attached Renewable Fuel Requirements Regulation is made.

— R. NEUFELD, Minister of Energy, Mines and Petroleum Resources ; S. BOND, Presiding Member of the Executive Council.

RENEWABLE FUEL REQUIREMENTS REGULATION

Part 1 —

Interpretation

Definitions

1 In this regulation:

"Act" means the Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act ;

"appeal" means an appeal under

section 14 (2) [what decisions may be appealed, who may appeal, process of appeal] of the Act;

"hydrogenation-derived renewable diesel fuel" means a fuel that is

(

a) made from plant or animal matter using a hydrogenation process, and

(

b) suitable for use in

(

i) a diesel engine, as defined in

section 1 (1) of

Schedule 1 of the Carbon Tax Act, or

(ii) a furnace or boiler to produce heat;

"Part 2 compliance report" means a report required under

section 3 of the Act.

Standard for biodiesel fuel

2 A fuel must meet the ASTM International standard ASTM D6751 Standard Specification for Biodiesel Fuel Blend Stock (B100) for Middle Distillate Fuels, as amended from time to time, to qualify as biodiesel fuel for the purposes of the Act.

Exclusion from "gasoline class fuel"

3 Gasoline class fuel does not include fuel that, at the time of sale, the

Part 2 fuel supplier reasonably expects will be used in an aircraft.

Part 2 fuel supplier

(1) For the purposes of paragraph (

b) of the definition of "Part 2 fuel supplier" in

section 1 of the Act, the following are prescribed as

Part 2 fuel suppliers:

(

a) a person who, for the person's own use, manufactures

Part 2 fuel in British Columbia;

(

b) a person who, for the person's own use, brings

Part 2 fuel into British Columbia;

(

c) a person who, for the person's own use, receives

Part 2 fuel brought into British Columbia on that person's behalf.

(2) Subsection (1) (

b) does not apply to a person who brings

Part 2 fuel into British Columbia in the fuel tank of the vehicle the person is driving or in a fuel tank for a device necessary for the intended use of that vehicle, if the fuel is used only to power that vehicle or device, as applicable.

Renewable diesel class fuel

5 Hydrogenation-derived renewable diesel fuel is prescribed as a renewable fuel in relation to diesel class fuel.

Exclusions from "supply"

(1) The definition of "supply" in

section 1 of the Act does not apply in relation to

Part 2 fuel in the following circumstances:

(

a) the

Part 2 fuel supplier, at the time of sale, reasonably expects that the

Part 2 fuel will be exported from British Columbia;

(

b) the

Part 2 fuel is sold by one

Part 2 fuel supplier to another

Part 2 fuel supplier;

(

c) the

Part 2 fuel is sold by its manufacturer to a

Part 2 fuel supplier.

(2) The exceptions in subsection (1) (

b) and (

c) do not apply in relation to

Part 2 fuel if the purchasing

Part 2 fuel supplier intends to use the

Part 2 fuel for its own use, unless the purchasing

Part 2 fuel supplier agrees in writing with the manufacturer or selling

Part 2 fuel supplier, as applicable, to comply with

section 2 of the Act in relation to that

Part 2 fuel.

Part 2 — Requirements in Relation to Renewable Fuels

Requirements for renewable fuel content

(1) A

Part 2 fuel supplier must ensure that the volume of diesel class fuel it supplies in a compliance period contains at least 5% renewable fuel content by volume.

(2) A

Part 2 fuel supplier must ensure that the volume of gasoline class fuel it supplies in a compliance period contains at least 5% renewable fuel content by volume.

(3) For the purposes of subsections (1) and (2), the percentage of renewable fuel content by volume must be calculated using the following formula:

(RFs + RFtt RFtb)/ Fs x 100

where

RFs = the volume of renewable fuel supplied by the

Part 2 fuel supplier in the compliance period;

RFtt = the volume of renewable fuel notionally transferred to the

Part 2 fuel supplier under

section 5 (1) of the Act in the compliance period;

RFtb = the volume of renewable fuel notionally transferred by the

Part 2 fuel supplier under

section 5 (1) of the Act in the compliance period;

Fs = the volume of

Part 2 fuel supplied by the

Part 2 fuel supplier in the compliance period.

Compliance period

8 The compliance period for the purposes of

section 2 of the Act is the calendar year.

Part 2 compliance reports

(1) In this section, "attorney" and "head office" have the same meanings as in the Business Corporations Act .

(2) A

Part 2 compliance report must be provided to the director on or before March 31 of the calendar year following the compliance period.

(3) A

Part 2 compliance report must set out, as applicable, all the following identifying and contact information respecting the

Part 2 fuel supplier:

(

a) legal name;

(

b) operating name;

(

c) name of the officer or employee submitting the report on behalf of the

Part 2 fuel supplier;

(

d) address of the head office in British Columbia, if applicable, and otherwise, the name and address of the corporation's attorney in British Columbia, including, as applicable, street address, postal address, city and postal code;

(

e) telephone and fax numbers;

(

f) email address.

(4) A

Part 2 compliance report must set out, as applicable, all the following information in relation to the

Part 2 fuel supplier for the compliance period set out under paragraph (a):

(

a) the compliance period to which the report relates;

(

b) the volume of renewable fuel supplied;

(

c) the volume of renewable fuel notionally transferred to the

Part 2 fuel supplier under

section 5 (1) of the Act;

(

d) for each

Part 2 fuel supplier from which the

Part 2 fuel supplier received a notional transfer of renewable fuel,

(

i) the legal name and address of that

Part 2 fuel supplier, and

(ii) the volume of renewable fuel notionally transferred;

(

e) the volume of renewable fuel notionally transferred by the

Part 2 fuel supplier under

section 5 (1) of the Act;

(

f) for each

Part 2 fuel supplier to which the

Part 2 fuel supplier notionally transferred

Part 2 fuel,

(

i) the legal name and address of that

Part 2 fuel supplier, and

(ii) the volume of renewable fuel notionally transferred;

(

g) the volume of

Part 2 fuel supplied in the compliance period;

(

h) a record and the result of the calculation under

section 7 (3) [requirements for renewable fuel content].

(5) A

Part 2 compliance report must be signed by the officer or employee referred to in subsection (3) (

c) and include a declaration of that officer or employee containing, as applicable, all the following:

(

a) a statement that records evidencing the renewable nature of all renewable fuel supplied in the compliance period are available on request;

(

b) a statement that records evidencing each matter reported under subsection (4) (

b) to (

g) are available on request;

(

c) if the report is submitted by an employee, a statement that a record evidencing the employee's authority to submit the report on behalf of the

Part 2 fuel supplier is available on request;

(

d) the following statement:

I certify that the information in this report is true and complete to the best of my knowledge and I understand that I may be required to provide to the director records evidencing the truth of that information.

(6) For the purposes of subsection (5), records evidencing a matter include, but are not limited to, the following types of records:

(

a) dated bills of lading, invoices, sales receipts, records of payments, records of metered values and records of transactions for the volume of each class of

Part 2 fuels reported under subsection (4) as supplied in a compliance period;

(

b) dated contracts, records of transfer, invoices and records of payments for volumes of renewable fuel notionally transferred to or by the

Part 2 fuel supplier in the compliance period.

(7) A

Part 2 compliance report must be in the form specified by the director.

Supplementary

Part 2 compliance report

10 A supplementary compliance report referred to in

section 3 (3) of the Act must

(

a) comply with

section 9 [Part 2 compliance reports] of this regulation, and

(

b) indicate which information is different from the information provided in the

Part 2 compliance report it supplements.

Records

(1) A

Part 2 fuel supplier must retain at its principal place of business in British Columbia, if any, or the place of business of its attorney, otherwise, books of accounts and the records necessary for the fuel supplier to demonstrate compliance with

section 2 of the Act for a compliance period.

(2) Records referred to in subsection (1) must be retained for 7 years after the end of the compliance period to which they relate.

Part 3 — Administrative Penalties

Prescribed contraventions

12 For the purposes of

section 12 (1) [administrative penalties in relation to other matters] of the Act, the following contraventions are prescribed:

(

a) a failure to provide a

Part 2 fuel compliance report by the date it is due;

(

b) a failure to retain records as required under

section 11 (1) or (2) [records] of this regulation.

Amount of administrative penalties

(1) For the purposes of sections 9 (1) [automatic administrative penalties] and 11 (2) [imposed administrative penalties: fuel requirements] of the Act, the penalty rate is

(a) $0.30/litre for gasoline class fuel, and

(b) $0.45/litre for diesel class fuel.

(2) The maximum amount of an administrative penalty that may be imposed

(

a) for a failure to provide a

Part 2 fuel compliance report on the date it is due is $100 000, and

(

b) for a failure to retain records as required under

section 11 (1) or (2) [records] is $500.

(3) If all or a portion of an administrative penalty is not paid when it is due, an additional penalty of 10% of the outstanding balance is imposed for each 14-day period it remains unpaid.

Notice of intention to impose administrative penalty

(1) Before sending an administrative penalty notice to a

Part 2 fuel supplier under

section 11 (2) or 12 (2) of the Act, the director must

(

a) serve the person with a notice of intent to impose an administrative penalty, and

(

b) provide the

Part 2 fuel supplier with an opportunity to be heard.

(2) An opportunity to be heard for the purposes of this

section may be provided, as the director considers appropriate in the circumstances,

(

a) in person,

(

b) in writing, including by facsimile transmission or electronic mail, or

(

c) by video conference, audio conference, telephone or other electronic means, if available.

(3) A notice of intent to impose an administrative penalty must set out

(

a) the alleged non-compliance, including the provision of the Act or regulations the person is alleged to have contravened and the circumstances of that non-compliance, and

(

b) the time, date, place and manner of hearing or the due date for written submissions.

(4) A notice of intent to impose an administrative penalty must be served on the person not less than 21 days before the date of a hearing under subsection (2) (

a) or (

c) or the due date of a submission under subsection (2) (b).

(5) On application, the director may change a time, date or manner of hearing specified under subsection (3) (b).

Consequences of failing to appear or provide submissions

15 If a person who is served with notice under

section 14 (1) of this regulation fails to appear or provide submissions when required by the notice or under

section 14 (5) of this regulation, as applicable, the director may proceed without further notice to serve the person with an administrative penalty notice under

section 11 (2) or 12 (2) of the Act.

Determining the amount of an administrative penalty

(1) In determining the amount of an administrative penalty for a failure to submit a

Part 2 compliance report by the date it was due, the director must consider

(

a) whether the

Part 2 fuel supplier has previously submitted

Part 2 compliance reports late and how often,

(

b) evidence provided by the

Part 2 fuel supplier as to whether the

Part 2 fuel supplier exercised due diligence in ensuring that the

Part 2 compliance report was submitted by the date it was due, and

(

c) any other matter the director considers relevant.

(2) In determining the amount of an administrative penalty for a failure to retain records as required under

section 11 (1) or (2) [records] , the director must consider

(

a) whether the

Part 2 fuel supplier has previously failed to retain the proper records or has failed to retain those records for 7 years, and how often, and

(

b) any other matter the director considers relevant.

Notice of administrative penalty

17 A notice of administrative penalty for the purposes of

section 11 (2) or 12 (2) of the Act must include all the following information:

(

a) the date by which the administrative penalty must be paid;

(

b) acceptable methods of payment;

(

c) the address to which the payment must be sent;

(

d) that the determination of non-compliance, the extent of the non-compliance or, in the case of an administrative penalty under

section 12 of the Act, the amount of the administrative penalty, may be appealed to the Environmental Appeal Board in accordance with

Part 5 of the Act and

Part 4 of this regulation.

Payment of administrative monetary penalty

(1) An administrative penalty must be made payable to the Minister of Finance.

(2) An administrative penalty under

section 11 [imposed administrative penalties: fuel requirements] or 12 [administrative penalties in relation to other matters] of the Act must be paid within 30 days after the date the

Part 2 fuel supplier is subject to the administrative penalty in accordance with

section 11(5) or 12 (3) of the Act, as applicable.

Time limit for imposing administrative penalties

(1) A notice under

section 14 [notice of intention to impose administrative penalty] must not be sent

(

a) more than 3 years after the date of the non-compliance to which it relates, or

(

b) if the minister issues a certificate described in subsection (2), 18 months after the date on which the minister learned of that non-compliance.

(2) A certificate purporting to have been issued by the minister certifying the date referred to in subsection (1) (

b) is proof of that date.

Publication of names

(1) The minister may publish, including by electronic means, all the following information in respect of a

Part 2 fuel supplier on whom an administrative penalty has been imposed under

section 9, 11 or 12 of the Act:

(

a) legal name;

(

b) amount of the penalty;

(

c) the provision of the Act or regulations with which the

Part 2 fuel supplier failed to comply.

(2) Publication under subsection (1) in relation to an administrative penalty under

section 11 or 12 of the Act may not occur until the fuel supplier is subject to the administrative penalty in accordance with

section 11 (5) or 12 (3) of the Act, as applicable.

Part 4 — Appeals

Time limit for commencing appeal

21 The time limit for commencing an appeal is 30 days after the notice of administrative penalty to which it relates is served.

Procedures on appeal

22 An appeal must be

(

a) commenced by notice of appeal in accordance with the Environmental Appeal Board Procedure Regulation, and

(

b) conducted in accordance with

Part 5 [Appeals to Environmental Appeal Board] of the Act and the Environmental Appeal Board Procedure Regulation.

Powers of appeal board on appeal

(1) On an appeal, the appeal board may

(

a) send the matter back to the person who made the decision with directions,

(

b) confirm, reverse or vary the decision being appealed, or

(

c) make any decision that the person whose decision is appealed could have made, and that the appeal board considers appropriate in the circumstances.

(2) The appeal board may conduct an appeal by way of a new hearing.

Part 5 — Enforcement

Inspectors

(1) The director may

(

a) designate a person as an inspector or a class of persons as inspectors, and

(

b) issue identification to a person, or a person in a class, designated under paragraph (a), identifying the person as an inspector.

Inspection and seizure powers

(1) For the purposes of ensuring compliance with this Act or the regulations, an inspector, at any reasonable time, may enter land or premises, other than premises or a part of premises used solely as a private residence, and inspect any place, process, thing or activity that is the business premises or operations of a fuel supplier.

(2) An inspector who enters on land or premises under this

section may do any of the following for the purposes referred to in subsection (1):

(

a) inspect, analyze, measure, sample or test anything;

(

b) use or operate anything or require the use or operation of anything, under conditions specified by the inspector;

(

c) take away samples;

(

d) make or take away copies of records.

(3) An inspector who enters land or premises in accordance with this

section

(

a) may take along the persons and equipment that the inspector considers may be necessary for the purposes of the inspection, and

(

b) on request, must provide proof of identity to a person present on the land or premises entered.

(4) Section 112 of the Environmental Management Act is adopted for the purposes of the Act and for that purpose

(

a) a reference in

section 112 to "this Act" or to "this Act or the regulations" must be read as a reference to the Act or the Act and this regulation,

(

b) a reference in

section 112 to a director must be read as a reference to the director under the Act, and

(

c) a reference in

section 112 to an officer is to be read as a reference to an inspector.

(5) A person who is the subject of an inspection under this section, or who is or was a director, receiver, receiver manager, officer, employee, banker, auditor or agent of a person who is the subject of an inspection under this section, on request of an inspector, must

(

a) produce, without charge or unreasonable delay, for examination by the inspector, any record relating to requirements under this Act, and

(

b) provide the inspector with information relevant to the purposes of the inspection.

Part 6 — Transition

Part 2 fuel suppliers — transition

26 For the purposes of demonstrating compliance with

section 2 [requirements for renewable fuel content] of the Act for the 2010 compliance period, a

Part 2 fuel supplier may report in its compliance report for that compliance period renewable fuel supplied by the

Part 2 fuel supplier in the 2009 calendar year as if it had been supplied in the 2010 compliance period.

Exclusion from "diesel class fuel"

27 Until January 1, 2013, diesel class fuel does not include fuel that, at the time of sale, the

Part 2 fuel supplier reasonably expects will be used in a locomotive or other rolling stock.

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